There are, no doubt, many Americans alive today who
should be thankful their healthcare providers did not
apply the administration's interpretation of "imminent"
to decide if they had crossed over the line of imminent
death and said pull the plug.

Some people have acquired power and profits in post-9/11
America by pandering to and perpetuating fear. As has
been the case on a range of legal issues – torture,
indefinite detention, warrantless surveillance, kill
lists – all it takes is for someone to say "terrorism"
and "threat to security" in the same breath for the vast
majority of the public to handover its principles.
Rather than a serious discussion on the proper
law/liberty/security balance, too often the public
accepts the false syllogism that whatever it takes to
stop "them" from hurting "us" is obviously, as White
House spokesman Jay Carney might say, "legal,
ethical and wise".

Targeted killing falls into that category. The
discussion tends to glom what should be several discrete
inquiries – where will the lethal operation take place;
who is the imminent threat and why; who will conduct the
operation; and what laws apply, among others – into one
big ball that slides through with little scrutiny.

The DOJ white paper discusses the right to take military
action against a US citizen who is part of the enemy
forces, law of war principles that govern application of
military power, judicial deference to military judgments
in the conduct of warfare, and combatant immunity that
gives legal sanction to a deliberate killing by a member
of the armed forces acting in compliance with the law of
war. In and of themselves, those are all very valid
points.

What the white paper ignores, however, is that the US
has both a military and a
CIA drone program, each one subject to its own
rules. The CIA is a civilian agency with civilian
employees and civilian contractors. It is not part of
the US armed forces and its drone program is not immune
from liability by the law of war principles that might
apply to the military drone program.

The deliberate killing of another person is generally
murder unless it is excused by some valid legal
justification, like the law of war's combatant immunity.
For example, the
United States charged Omar Khadr with committing
murder in violation of the law of war for throwing a
grenade and killing a US service member during a battle
in Afghanistan.

At
his military commission trial at
Guantánamo Bay, Cuba, the
military judge explained to Khadr that the law says
a "killing is unlawful when done without legal
justification or excuse" and that "the phrase 'in
violation of the law of war' means a person … acting as
a combatant [who] did not meet the requirements for
being a lawful combatant." Khadr pled guilty to the
charge and is now in prison in Canada serving a sentence
for
war crimes.

Under what authority is the CIA legally excused for
deliberately killing?

The United States has never made – nor should it – the
argument that the CIA is part of the US armed forces and
governed by the law of war. The fact that the two
entities are separate and operate under distinct rules
is clear.
John Brennan, President Obama's nominee to head the
CIA, made the point
in his answers to prehearing questions (pdf) from
members of the Senate select committee on intelligence:

"The president
must have the ability to select which element [the
CIA or Department of Defense] is best suited for the
particular mission. Factors to be considered in the
selection of the personnel and authorities include
the capabilities needed, the material required, and
whether the activity must be conducted covertly."

Stated another way, Brennan says that President Obama
needs to have a paramilitary force at his disposal to
carry out operations the military is prohibited from
conducting by the law of war.

Jack Goldsmith, former assistant attorney general in the
George W Bush administration and now a professor at
Harvard Law School, argues the past decade shows that
the United States needs a
new statutory framework governing how it conducts
secret warfare. Perhaps that would be a positive step,
but a new domestic statutory scheme would not make a
civilian working for a civilian agency a lawful
combatant entitled to immunity under the law of war for
acts committed outside the United States.

Neither Congress nor the president has the power to
create a legal justification for killing in violation of
the law of war.

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